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Terms & Conditions

14.3. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and

enforceability of the remaining provisions shall not be affected, prejudiced or impaired14.3. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and

enforceability of the remaining provisions shall not be affected, prejudiced or impairedof the rights or obligations TER has under this contract1. DEFINITIONS

1.1 “TER” shall mean The Engine Room Ltd, or any agents or employees thereof.

1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person

purchasing products and services from TER.

1.3 “Products” shall mean:

1.3.1.all Products of the general description specified on the front of this agreement and supplied by TER to the Customer; and

1.3.2.all Products supplied by TER to the Customs; and

1.3.3.all inventory of the Customer that is supplied by TER; and

1.3.4.all Products supplied by TER and further identified in any invoice issued by TER to the Customer, which invoices are deemed

to be incorporated into and form part of this agreement; and

1.3.5.all Products that are marked as having been supplied by TER, or that are stored by the Customer in a manner that enables

them to be identified as having been supplied by TER; and

1.3.6.all of the Customers present and after-acquired Products that TER has performed work on or to or in which goods and materials

supplied or financed by TER have been attached or incorporated,

1.3.7.The above descriptions may overlap but each is independent of and does not limit the others.

1.4 “Products and Services” shall mean all products, services, goods and advice provided by TER to the customer and shall include

without limitation the manufacturer and supply of marine Products and services and all charges for labour, hire charges, insurance

charges or any fee or charge associated with the supply of Products and Services by TER to the Customer.

1.5 “Price” shall mean the cost of the Products and Services as agreed between TER and the Customer and includes all disbursements,

e.g. charges TER pay to others on the Customer’s behalf subject to clause 4 of this contract.

2. ACCEPTANCE

2.1 Any instructions received by TER from the Customer for the supply of Products and Services shall constitute a binding contract and

acceptance of the terms and conditions contained herein.

3. COLLECTION AND USE OF INFORMATION

3.1 The Customer authorises TER to collect, retain and use any information about the Customer for the purpose of assessing the

Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products and Services provided by TER to

any other party.

3.2 The Customer authorises TER to disclose any information obtained to any person for the purposes set out in clause 1.

3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the

Privacy Act 1993.

4. PRICE

4.1. Where no Price is stated in writing or agreed to orally the Products and Services shall be deemed to be sold at the current amount as

such Products and Services are sold by TER at the time of the contract.

4.2. The Price may be increased by the amount of any reasonable increase in the cost of supply of the Products and Services that is beyond

the control of TER between the date of the contract and delivery of the Products and Services.

4.3.

5. PAYMENT

5.1. Payment for Products and Services shall be made in full either:

5.1.1. Cash on delivery/completion

5.1.2. Within 7 days on completion; or

5.1.3. On or before the 20th day of the month following the date of the invoice (‘the due date”).

5.2. Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.

5.3. Any expenses, disbursements and legal costs incurred by TER in the enforcement of any rights contained in this contract shall be

paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.

5.4. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is

paid in full.

5.5. A deposit may be required.

6 . QUOTATION

6.1.Where a quotation is given by TER for Products and Services:

6.1.1. Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and

6.1.2. The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary.

7. TITLE AND SECURITY (PERSONAL PROPERTY ACT 1999)

7.1. Title in any Products and Services supplied by TER passes to the Customer only when the Customer has made payment in full for all

Products and Services provided by TER and all other sums due to TER by the Customer have been paid in full, TER has a security

interest in all Products and Services.

7.2.If the Products and Services are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or

assembly process by the Customer or any third party, title in the Products and Services shall remain with TER until the Customer has

mixed with other property so as to be part of or a constituent of any new Products and Services, title to these Products and Services

shall deemed to be assigned to TER as security for the full satisfaction by the Customer of the full amount owing between TER and

the Customer.

7.3. The Customer gives irrevocable authority to TER to enter any premises occupied by the Customer or on which Products and Services

are situated at any reasonable time after default by the Customer or before default if TER believes a default is likely and to remove

and repossess any Products and Services and any other property to which Products and Services are attached or in which Products

and Services are incorporated. TER shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any

third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability

cannot be excluded. TER may either resell any repossessed Products and Services and credit the Customer’s account with the nett

proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and

Services and credit the Customer’s account with the invoice value thereof less such sum as TER reasonably determines on account of

wear and tear, depreciation, obsolescence, loss or profit and costs


7.4. Where Products and Services are retained by TER pursuant to clause 7.3 the Customer waives the right to receive notice under s.120

of the Personal Property Securities Act 1999 (‘PPSA’) and to object under s.121 of the PPSA.

7.5. The following shall constitute defaults by the Customer:

7.5.1. Non payment of any sum by the due date

7.5.2. The Customer intimates that it will not pay any sum by the due date.

7.5.3. Any Products and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to

seize Products and Services

7.5.4. Any Products and Services in the possession of the Customer are materially damaged while any sum due from the Customer to

TER remains unpaid.

7.5.5. The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord

disdains against any of the Customer’s assets.

7.5.6. A Court Judgement is entered against the Customer and remains unsatisfied for seven (7) days.

7.5.7. Any material adverse change in the financial position of the Customer.

8. SECURITY INTEREST FOR SERVICE PROVIDERS.

8.1. The Customer gives TER a security interest in all of the Customer’s present and after-acquired property that TER has performed

services on or to in which goods or materials supplied or financed by TER have been attached or incorporated.

9. GENERAL LIEN

9.1. The Customer agrees that TER may exercise a general lien against any Products and Services or property belonging to the Customer

that is in the possession of TER for all sums outstanding under this contract to which the Customer and TER are parties.

9.2. If the lien is not satisfied within seven (7) days of the due date TER may, having given notice of the lien at it’s option either:

9.2.1. Remove any Products and Services and store them in such as place and in such a manner as TER shall think fit and proper and

at the risk and expense of the Customer, or

9.2.2. Sell such Products and Services or part thereof upon such terms as it shall think fit and apply the proceeds in or towards

discharge of the lien and costs of sale without being liable to any person for damage caused.

10. LIABILITY

10.1. The Customer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose

obligations upon TER which cannot by law (or which can only to a limited extend by law) be excluded or modified. In respect of any

such implied warranties, conditions or terms imposed on TER, TER’s liability shall where it is allowed, be excluded or if not able to

be excluded only apply to the minimum extend required by the relevant statute.

10.2. Except as otherwise provided by clause 10.0 TER shall not be liable for:

10.2.1. Any loss or damage of any kind whatsoever, rising from the supply of Products and Services by TER to the Customer including

consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including

negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products and Services

provided by TER to the Customer and

10.2.2. The Customer shall indemnify TER against all claims and loss of any kind whatsoever however caused or arising and without

limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of TER or otherwise,

brought by any person in connection with any matter, act, omission or error by TER it’s agents or employees in connection with

the Products and Services.

11. WARRANTY

11.1. Any warranty provided by TER to the Customer shall also form part of these terms and conditions of trade.

12. CONSUMER GUARANTEES ACT

12.1. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products and

Services for TER for the purposes of a business in terms of section 2 and 43 of that Act.

13. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES

13.1. If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for TER agreeing to

supply Products and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity

and jointly and severally personally undertake as principal debtors to TER the payment of any and all monies now or hereafter

owed by the Customer to TER and indemnify TER against non-payment by the Customer. Any personal liability of a signatory

hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The

signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of

all sums due hereunder.

14. MISCELLANEOUS

14.1. TER shall not be liable for delay or failure to perform it’s obligations if the cause of the delay or failure is beyond it’s control.

14.2. Failure by TER to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations TER has under this contract.

14.3. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and

enforceability of the remaining provisions shall not be affected, prejudiced or impaired



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